Marshall Lester of Corpus Christi, Texas, says that his former roommate Carlos Hernandez was a violent man and always carried a knife like the one used in the murder of Wanda Lopez.
Photo: Chuck Berman, / Chicago Tribune

Marshall Lester of Corpus Christi, Texas, says that his former...

Carlos Hernadez, who died in prison after being convicted in another attack, bragged of killing Lopez and laughed about DeLuna taking the fall. Photo courtesy Columbia Human Rights Law Review
/ Photo courtesy Columbia Human

Carlos Hernadez, who died in prison after being convicted in...

Carlos DeLuna was executed in 1989 for the stabbing death of Wanda Lopez, although he insisted Carlos Hernandez did the crime.
/ Photo courtesy Columbia Human

Carlos DeLuna was executed in 1989 for the stabbing death of Wanda...

Carlos Hernadez, who died in prison after being convicted in another attack, bragged of killing Lopez and laughed about DeLuna taking the fall. Photo courtesy Columbia Human Rights Law Review
/ Photo courtesy Columbia Human

At 24, Wanda Lopez was savvy to the pitfalls of her crime-infested Corpus Christi neighborhood. A divorced high school dropout with a child to support, she knew well the perils of her solo night job at a nearby gas station. When a customer warned that a man with a knife lurked outside the store, she immediately telephoned police.

What happened next that February night in 1983 - a robbery, frenzied struggle and fatal stabbing - continues to resonate with questions about how well police, prosecutors and defense lawyers performed their jobs.

On Tuesday, the Columbia Human Rights Law Review will devote its spring issue to a 400-page article asserting that the state convicted the wrong man, bypassing a potential suspect who had bragged of killing Lopez.

The critique is the latest in which death penalty opponents seek to prove that Texas, with 482 executions since 1982, killed an innocent man.

Steve Schiwetz, who served as lead prosecutor at the executed man's trial, has not read the journal article, but he disputed the authors' conclusions as related by a reporter.

"These guys are crusaders," he said. "What can I say?"

The journal article presents the stories of two men named "Carlos." More than a given name, Carlos DeLuna and Carlos Hernandez shared darkly handsome looks and a history of substance abuse and violence against women.

DeLuna called 'childlike'

DeLuna, 27, executed for Lopez's murder in December 1989, was "childlike" and a "follower," acquaintances told researchers. His rap sheet included convictions for auto theft and attempted rape.

When police found him beneath a truck a short distance from the robbed gas station, DeLuna protested that he had not committed the crime.

Hernandez reveled in his reputation as a thug, flaunting a buck knife and boasting of his exploits. He claimed to have strangled a young woman, knifing an X on her back as her child slept nearby. He was charged but never convicted of the crime. He spent time in prison for a string of convenience store robberies and for slicing a female friend's belly from sternum to navel.

Along the way, he bragged of killing Lopez and laughed about DeLuna taking the fall. In 1996, Hernandez's parole was revoked after he attacked a woman with a knife. He died in prison three years later at 45.

The journal article, "Los Tocayos Carlos: Anatomy of a Wrongful Execution," grew out of a 2003 student project to examine Texas capital cases in which a single eyewitness account was key to conviction.

"This case changed my whole view," said Columbia Law professor and project sponsor James Liebman. "I had thought the problem cases were ones where you have an out-of-town defendant, a scary person who commits a really bad crime that grabs the whole community. The police are under so much pressure to find someone that something goes wrong. Now, I think the worst cases are those that likely happen every day in which no one cares that much about the defendant or the victim."

Schiwetz, who now works as a private lawyer in Corpus Christi, dismissed DeLuna's original court defense and has rebuttals for several of the assertions the authors make in the journal article. For one, he said, DeLuna confessed his guilt to a sheriff's deputy, a claim the researchers dispute.

Efforts to reach members of DeLuna's family, including a sister who lives in Houston, were unsuccessful.

Victim on the phone with 911

Lopez, the mother of a 5-year-old girl, had little more than two hours work left the night of Feb. 4, 1983, when a man approached to buy cigarettes. Minutes earlier, a customer had warned that the man had been idling outside the store with a knife.

Lopez was on the phone with a 911 operator when the man pulled the weapon and demanded cash. In the taped emergency call, Lopez is heard trying to comply. Then comes the sound of a scuffle, a woman's scream and the clunk of the receiver into its cradle.

The journal cites purported irregularities in the investigation that followed.

The police manhunt started with wildly divergent descriptions of the robber. A gas station customer reported seeing a shabby, unshaven man with a mustache; a couple a short distance away said they saw a neatly groomed man in white shirt and dress pants.

Hernandez typically sported a mustache and dressed sloppily. On the night of the robbery, the clean-shaven DeLuna had worn a white shirt.

When DeLuna was returned to the store in the back of a police cruiser, all witnesses identified him as the culprit. The only witness who saw Lopez struggling with the robber later told law journal authors he was only 70 percent sure of his identification. If police had not told him DeLuna had been corralled nearby, he would have been only 50 percent certain.

Leading the investigation at the scene was novice homicide detective Olivia Escobedo. Journal researchers contend she overlooked evidence, including bloody footprints. A police technician failed to find usable fingerprints. After what the journal termed a speedy on-site investigation, store workers scrubbed down the crime scene.

Escobedo, who no longer lives in Texas or does police work, defended her performance, noting that she worked under the supervision of veteran officers. She is confident in the case's outcome, she said, because state and federal courts upheld DeLuna's conviction.

If DeLuna's problems started with the police investigation, journal authors argue, they gained speed with his defense.

Appointed as his advocates were a general practice lawyer who never had handled a major felony case and a veteran who had a heavy case load. The attorneys poorly coordinated their strategy and failed to present a single witness in the trial's punishment phase.

Appeals, the journal says, also were feckless, with one predicating its case on punishment phase defense testimony that never was offered.

DeLuna insisted to his lawyers that another man had killed Lopez. Only hours before his trial was to begin did he reveal Hernandez's name. On the night of the crime, he said, both men had been together at a nearby topless club.

Minutes after Hernandez left to make a purchase at the station, DeLuna said, he saw Lopez and Hernandez struggling through the store's windows and fled.

Prosecution defended

Prosecutors, the article says, knew of Hernandez's violent criminal history. Days after the gas station stickup, Hernandez was arrested for loitering outside a convenience store with his prized buck knife. Authorities used his detention to update his fingerprint file. Still, before the jury at DeLuna's trial, lead prosecutor Schiwetz dismissed Hernandez as "a phantom."

DeLuna's clothing bore no blood traces, he said, because in his struggle with Lopez, the victim was positioned so that her blood dripped straight down.

DeLuna lied about his whereabouts before the robbery, claiming he had met a pair of female friends at a skating rink. One of the women, Schiwetz said, reported she had attended a baby shower that night and had photos to prove it.